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Family Practice: Time for a change? – No fault divorce

This month we are examining the impact of a recent Court of Appeal decision on the divorce petition of Mrs Tini Owens. The Court of Appeal have, in refusing Mrs Owens’ divorce petition, buried the possibility of a couple divorcing on a no fault basis.

England and Wales, unlike many other legal jurisdictions, require one party in a divorce to prove the other was at “fault”. When couples apply for a divorce, they must prove that the marriage has “irretrievably broken down” (Matrimonial Causes Act 1973). To show this breakdown, a party has to give one of five reasons: 

•    adultery
•    unreasonable behaviour
•    desertion 
•    separation of two years with consent
•    separation of five years without consent

The idea that a couple can be locked in a loveless marriage for up to five years has led to several attempts to modernise the system so that one spouse does not have to blame the other or wait for between two and five years to separate. 

As recently as the Parliamentary session of 2015–2016, a Bill was introduced under the Ten Minute Rule by a single MP. Unfortunately the Bill did not get sufficient support to be passed, but it highlighted longstanding issues with the current fault-based divorce law. There have also been recent campaigns in support of no fault divorce by the Daily Mail and an attempt by the Conservative government of John Major in the Family Law Act 1996 to allow no fault divorce in England and Wales. Unfortunately the fault-based approach to family law remains stubbornly stuck.

Why is it preferable for divorcing couples to divorce without fault? 

One divorce lawyer, Ayesha Vardag, suggested that it was really a question of “whether it is right in 21st-century Britain to force couples through the Victorian farce of fault-based petitions ...”. 

Professor Liz Trinder of University of Exeter Law School put it even more bluntly when she said, “Fault-based divorce has caused significant misery and costs ...”. 

Indeed, it is not just practicing lawyers and legal academics who recognize the misery the current law can bring in robbing couples of the possibility of divorcing with dignity. Lady Justice Hallett in the Owens case reached her decision “with no enthusiasm whatsoever”. Supreme Court Justice Lord Nicholas Wilson, in an interview with BBC Radio 4, admitted that many other judges were disappointed that the 1996 attempt to eliminate fault-based divorce failed.

With the current law on divorce being so roundly condemned, it is no wonder that the Owens decision has put many lawyers in a state of despair about the direction the law is going in. 

Over 200,000 people get divorced each year. Official statistics show that fault-based facts, particularly behavior and adultery, are the most commonly relied on. In 2014 the Office of National Statistics showed that 52,000 divorces cited behaviour as the reason for the breakdown. This is not a remote issue that affects only a small number of people every year. 

Whether the press coverage that the Owens decision attracted, and the ongoing hardships some people can experience, will motivate the government to reconsider the calls to update the law of divorce remains to be seen. What can be said is that the ruling may mean that couples are forced to include more hostile examples of behaviour, whether or not they are based on the truth. This will inevitably lead to more acrimony between the parties. In simple language, it may pay a party to “sling mud” rather than risk being locked in a loveless marriage. It is a sorry state of affairs when the law in effect is forcing couples to stay together. This is surely not what most people in 21st-century England and Wales want?

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